United States v. Knox
The case of United States v. Knox, involved a man who purchased videotapes of young girls dancing and posing in skimpy outfits. The videotapes were advertised as being legal because they did not contain any nudity. The man was convicted of receiving and possessing child pornography. In upholding Knox's conviction, the United States Court of Appeals for the Third Circuit wrote:
- Hence, as used in the child pornography statute, the ordinary meaning of the phrase "lascivious exhibition" means a depiction which displays or brings forth to view in order to attract notice to the genitals or pubic area of children, in order to excite lustfulness or sexual stimulation in the viewer. Such a definition does not contain any requirement of nudity. [...] Nor does such a definition contain or suggest a requirement that the contours of the genitals or pubic area be discernible or otherwise visible through the child subject's clothing.
The court rejected the idea that the defendant could rely on the vendor's claim that the videotapes were legal, and specifically stated that a claim of legality should alert a viewer to the presence of potentially illegal material:
- [The vendor]'s disclaimer could not reasonably lead Knox to believe that the videotapes were legal. If anything, the need to profess legality should have alerted Knox to the films' dubious legality.
The court also agreed with a wide interpretation of the term "pubic area":
- [O]ther areas in close proximity to the genitals, specifically the "uppermost portion of the inner thigh," were also included in the statutory definition of the pubic area.
This decision was based in part on a last-minute change to the proposed child pornography law in 1977. As it was originally written, the law would have prohibited "nudity, which nudity is depicted for the purpose of sexual stimulation or gratification of any individual who may view such depiction." The revised and still current law prohibits the "actual or simulated lascivious exhibition of the genitals or pubic area." The court reasoned that by removing the reference to nudity, the government intended to criminalize both nude and non-nude depictions of children.
The defense had not anticipated that the prosecution would argue the upper thigh was part of the pubic area and did not have an expert ready to contest it. When they finally obtained Dr. Todd Olsen, Director of Human Gross Anatomy at the Albert Einstein College of Medicine, to rebut this claim, it was too late to assist Knox, as the deadline for evidential testimony had passed.
Abramson et al argue in Sexual Rights in America, "The dictionary defines 'exhibit' as: 'to present or expose to view; show; display.' At the very least, then, for something to be exhibited, it must be visible. Yet neither genitals nor pubic areas were visible is Knox's films . . . It borders on the ludicrous to claim that something is being exhibited if that something is shielded from view. A covered crotch shot is not the same as the genitals; the upper thigh is certainly not the pubic area. . . . Obviously, 'flashing' and 'mooning' would have very different meanings if the flasher or mooner were wearing a bathing suit or leotard."
- wikipedia:United States v. Knox